Stark Anti-Fraud and the "Safe Harbor" revisions

Barriers Discourage Hospitals From Helping Doctors Adopt EHRs 

Despite relaxed federal laws that allow hospitals to subsidize physicians' adoption of electronic health record systems, doctors still have been slow to invest in the technology, the Tennessean reports.
 

PHYSICIAN BEWARE:  DO NOT SIGN ANY AGREEMENT LACKING AN EXIT STRATEGY

Before signing any agreements where your medical record data is hosted elsewhere, ensure that you will not lose access to your patient's data in the future. Include written clauses that confirm you will be delivered your patient data, upon written request, within a specified time period (i.e. < 30 days) for a pre-defined price and within a pre-defined format.

Better yet, include a daily penalty fee for each day that data has not been delivered. Include a clause that the hosting entity is responsible for any subsequent legal fees associated with attempts to obtain the data as specified in the original agreement. Be aware that, at some sites, so-called "HIPAA regulations" are subsequently being presented as a means to avoid transfer of medical records to physicians. Even though bogus, it typically proves to be an effective means to block physicians from getting their records.

- During the selection process for a sponsored EHR system, it is wise to ensure any/all decision makers dealing with vendors adhere to a code of ethics and behavior where the decision makers will not be entertained or receive "special" favors from vendors. It is also wise to bond the decision makers so that prosecution is automatic if evidence arises that decisions were unduly influenced. You can't assume the influnce peddling ends with the free dinners, limosine rides and/or Christmas "gifts" extended to decision makers by vendors.

- For any interfaces promised by vendors, specify (written, not verbal) the total costs, time frames, and specifications for delivery. Better yet, include a daily penalty fee for each day that the interface has not been delivered. Include a clause that the vendor (and/or enterprise) is responsible for any legal fees associated with any subsequent attempts to obtain the interface.

- Do not sign agreements that preclude you from using your own practice data in order to participate in whatever registries or information sharing activities you or your patients prefer. Signing away your ability to participate in the rewards of data mining is analogous to giving away the mineral rights to any property you own.

- Vendors for the common enterprise systems keep the patient data locked within proprietary formats and charge physicians an average of $10,000 for a single, simple export of the data.

-  Before signing on to use a system sponsored by an outside entity. Count the steps and use a stopwatch to time:

1. Creation of a new prescription.

2. Authorization of a refill request.

3. Creation of a completed encounter note for a typical visit type that is common to your practice.

4. Ask for a simple modification of a simple encounter template.

5. Accept no return on investment analysis (ROI) from a vendor that does not include line items calculating physican productivity losses over time (based on your own measurements).

Determine who absorbs the expense and consequences for the increased clerical time associated with the above items and the other documentation tasks in your practice. For example, if the system adds an additional minute per encounter, and you average 25 patients daily, who absorbs the extra 25 minutes each day of lost "productivity?"  This is most often the real cost to physicians for EHR systems. The cost savings to have a "donated" system often pales in proportion to the cost of lost physician productivity. If an employer is necessitating that physicians use a less efficient EHR, is the physician to be paid extra for working another 25 minutes each day? Or, will the physician's salary be cut because they are seeing fewer patients? Get written answers that deal with the consequenses over the long-term after the initial implementation.

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The so-called safe harbors or relaxation of the “Stark Rules” has proven to be a mixed blessing for physicians and their patients. The intent of the relaxation was to make it easier for physicians to acquire information technologies by having it provided by local hospitals and health care delivery systems. Local hospitals providing EHR technologies can be beneficial if precautions are taken. The downsides that we have witnessed include…

- A majority of hospitals having a primary focus on good patient care and evidenced-based medicine typically can’t afford the expense associated with the systems being actively marketed to enterprises. They are increasingly being placed at a competitive disadvantage when they have to compete with delivery systems having a primary foucs on enhancing their profit centers.

 - Many physicians are being pressured to use dontated-sponsored EHR's that typically add an extra hour of clerical work each day. To physicians, these "free" systems are terribly expensive.

- The predominant systems being chosen for these projects typically offer little ability to customize the EHR to meet physician’s unique needs.

- We have had several physicians report that they are having to replace an EHR that takes 2-3 steps and 20 seconds to generate a prescription with one that takes 5-10 steps and 1-2 minutes.

- In these “enterprise-focused” systems, physicians are typically forced to collect data in a fashion that detracts from patient care and well-being. For example, it is common for physicians to have to focus on capturing and reporting 10 to 20 clinical data elements for every patient (even for every influenza patient during influenza season).

- The normal outcome in most of the projects, to date, has been that many (perhaps even a majority) of physicians report they are being forced to use systems that greatly increase their charting time, makes them less efficient, and lowers their productivity.

- A situation that is commonly emerging is that if the doctors do not follow the wishes of the “enterprise” then the enterprise will impair access to information in various fashions. Physicians need to be aware that information access can be a tool to pressure them to become “compliant.”

- Another subtle little twist we have seen is that the enterprise software can make it extremely easy to order an MRI from within the enterprise, but can often require multiple, extra steps and inordinate amounts of time to order the MRI from the independent facility down the street.

- A rare but particularly egregious situation is that physicians wanting to use information technologies to promote more efficient use of resources (i.e. fewer unnecessary medical procedures) are sometimes being replaced with mid-level providers who are allowed to do little more than simply capture the necessary data allowing patients to be triaged to the appropriate “profit center.” (Note: We strongly advocate using mid-levels as a part of a team focused on delivering the best practices of evidenced-based medicine.)

- The vendors most commonly marketing to enterprises may sometimes promise interfaces to other systems. However, the average cost to a small practice is $14,000 just for a simple exchange of demographics. The offering of more robust interoperability is rarely, if ever, a reality. From a patient and physician perspective, the relaxation of the stark nati-trust rules, within an industry that has little to no affordable interoperability, may be doing more harm than good in some localities via the creation of monopolistic information systems.

- Following  the recommendations made here can greatly increase the likelihood that sponsored EHR systems can better serve patients and the doctors deserving of their trust. The recommendations are based on direct observations and experiences over the past 2 years and at dozens of sites.
 

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 Advice dealing with Vendors:

Check the evidence rather than listen to the sales pitches. The reality is that most systems marketed as "enterprise EHR's" are very unfriendly to physicians and patients. They are more friendly to the billing and administrative departments.

Understand that all vendors (even those experiencing deinstallation rates of 30-40%) can send you to "satisfied" installations. Conclusions made from site visits arranged by vendors are likely to be in error.

Physicians not having and/or making the final decisions regarding EHR vendors are setting themselves up for disaster. This is one decision where delegation results in a disaster rate of 30 to 40% based on industry surveys.

Well designed and implemented EHR systems should not result in decreases in physician productivity, but all require a stage of customization that will need to be budgeted (time and expense). Planning for fewer patient encounters or for income loss during implementation is a key sign of either a flawed EHR, a flawed implementation plan, or both.

All physicians know of sites where systems were implemented resulting in significant losses of physician productivity. This does not mean all vendors deliver systems causing productivity losses.

Regarding SOAPware:

SOAPware 2008 with its PostgreSQL database is as scalable, or more so, than any currently existing “enterprise” system. (The largest known database in the world runs on PostgreSQL and is owned by Yahoo.)

SOAPware 2008 is more technically advanced than most of the systems actively marketed for enterprise use. However, the software costs for SOAPware are typically 10 to 25% of the costs that are now common in the industry. The cost difference is not due to less software functionality/capability, but rather is primarily due to less sales and marketing expenses, use of more modern technologies, and no need to pay back investors or venture capital.

The total costs to physicians for SOAPware is often less than the required 15% cost-sharing  for the systems commonly marketed to hospitals.

Purchase of a complete SOAPware system is sometimes less costly than the annual maintenance cost of systems commonly marketed to hospitals.

Of even greater importance is that SOAPware, Inc. advises against any approach to implementation that lowers productivity at any time. Promises of later productivity gains simply do not necessitate nor justify losses in the beginning.

Workflows can be implemented that can  force the use of more structured-coded data within SOAPware, if that is the eventual goal of the decision makers.  This is often a feature that sales persons use when dealing with administrators. SOAPware is no less capable of doing this than any currently existing EHR system.

There's a war out there, old friend... it's not about who's got the most bullets, it's about who controls the information